Case Law Friday — US Supreme Court interprets child custody order in terms of international kidnapping:
The United State Supreme Court has held that an order prohibiting a parent from taking a child out of the country without the other parent’s consent is enforceable under international child abduction laws.
In Abbott v. Abbott, the parents divorced in Chile where the mother was granted custody of the son and the father had visitation rights. The Chilean court granted the mother a ne exeat order which prohibited either parent from removing the child from Chile without the agreement of the other parent. The mother then moved from Chile to the United States. When the father located the mother and child in Texas, the father moved to enforce the ne exeat order.
The United States Supreme Court held that the Chilean order conferred a right of custody on the noncustodial father under the international laws pertaining to child abduction (Hague Convention on the Civil Aspects of International Child Abduction), permitting enforcement by the father to compel return of the child to Chile. The Court compared the custody order to that of "joint custody".
Moreover, the Court explained, the only remedy for the violation of a ne exeat right is an order of return. Any other result, it emphasized, would “render the Convention meaningless in many cases where it is most needed.” In the Court ‘s eyes, its conclusion was further bolstered by the persuasive views of the State Department “that ne exeat rights are rights of custody” – which, the Court continued, are significant under the longstanding rule “that the Executive Branch’s interpretation of a treaty ‘is entitled to great weight.’”
Despite this ruling, the United States Supreme Court did not order the child automatically returned. Instead, the Court remanded the case to the trial court to consider whether any of the exceptions to return would apply. For example, the international child abduction laws provide exceptions for return based on a grave risk of physical or psychological harm to the child.
Hat tip to SCOTUS Wiki for their analysis of the Abbott opinion.